Frankfurt Kurnit Klein & Selz

November 5th, 2013

Legal Requirements for Working with Child Models

On October 21, New York State passed a new child labor law. This law adds print and runway models under the age of 18 to the definition of "child performers" protected by the New York Labor Law. The new law also amends the Arts and Cultural Affairs Law to extend to child models the same protections currently afforded to child performers. This law applies not only to models who work in New York but also to any models who reside in New York State, regardless of where services are provided. The law takes effect on November 20, 2013.
The changes will have a profound effect on how businesses engage or represent models under 18, including the brands that use child models in their advertising, the advertising agencies that engage child models on behalf of their brand clients, fashion designers who use child models their fashion shows, and the modeling agencies that represent child models.
Under the new law, employers of child models must now adhere to the requirements contained in the New York Labor law, including:
Permits: Employers must now apply for and obtain a general Employer Certificate of Eligibility from the New York State Department of Labor before they employ any child performers. Employers must also verify that all child performers they employ have a valid employment permit from educational authorities such as a superintendent of schools as well as a certificate of physical fitness. All certificates and permits must be available at all times for inspection by authorized entities. At least two days before employing a child model, employers must also file a Notice of Use with the Department of Labor advising of their intent to employ child performers.  Notice of Use forms can be found here.
For purposes of the new law, a "child performer's employer" will be considered a person or entity that employs a child model either directly, or through an agency or loan-out company.
Parent or Guardian: Child models must now have a designated responsible person on set at all times (for performers under age 16) or a nurse (for infants).
Trust Accounts: Prior to the first instance of employment, the Department of Labor requires that a child performer's parent or guardian establish a child performer trust account. Employers must deposit at least 15% of the child's gross earnings into this trust account. Trust accounts may be set up anywhere, so long as they meet the New York State requirements, or are a California "Coogan" type account.
Limited Work Hours: Under the existing child performer regulations, child performers are limited to restricted working hours based on age and school attendance. A chart summarizing the permitted working hours can be found here.
Educational Requirements: Employers must now provide New York certified teachers/tutors to child models who are missing school due to work as follows: from the third day of missed instruction through the remainder of the child's employment; or from the first day of missed instruction through the remainder of the child's employment in the production, if the child was guaranteed three or more consecutive days of employment.
Changes to the Arts and Cultural Affairs Law: Contracts for child models are now included in the class of contracts that may be submitted to the supreme court or surrogate's court for court approval.
Penalties: Violators of these provisions face more than just suspension of their permits: the Labor Law allows for civil penalties of up to $1,000 for the first violation, $2,000 for the second violation, and $3,000 for the third violation.
For more information about the new law, or about other employment law issues, please contact Wendy Stryker at (212) 705 4838 or wstryker@fkks.com, Michael Williams at (212) 826 5587 or mwilliams@fkks.com, or any other member of the Frankfurt Kurnit Employment Group.